The Future of Streaming: A Felony?

Streaming video and music is undoubtedly the future for television, radio, film, and even live events. The major TV networks offer free streaming of episodes of their shows; a huge variety of movies is available to stream through services like Netflix or Amazon, and events such as the Tribeca Film Festival and the South by Southwest Festival offer live streaming. The availability of streaming video will only continue to grow as people cancel their cable subscriptions in favor of watching their favorite shows and movies on their computers.

The examples above are only one subset of the growth of streaming video, authorized content offered either by the copyright holder directly or through a licensing agreement (for services like Hulu, Comcast Xfinity, and Amazon). While these options are wildly popular, providers of authorized content often charge subscription fees or offer only a limited selection of videos. Such protections are arguably necessary for the commercial viability of the content, and serve to compensate copyright holders. There are, however, plenty of sites that offer links to an enormous library of TV shows, movies, and other copyrighted content — free of charge — and well beyond the limited scope of content provided by copyright holders.

The question of streaming unauthorized content has been hotly debated. Copyright laws subject those who “reproduce” or “distribute” copyrighted works to felony charges. Downloading or sharing copyrighted works without authorization, like with peer-to-peer file-sharing, falls under this category and invites prosecution for a felony. The fate of streaming copyrighted works has yet to be clarified. Some view streaming in the same bent as file-sharing, while others believe it is more analogous to a “public performance” because the content is “perceived simultaneously with the transmission.” Public performance of a copyrighted work without a license is not punishable as a felony.

The uncertainty surrounding illegal streaming could all come to an end soon, however. The White House and its IP Enforcement Coordinator announced this past week a list of proposed legislation in the realm of IP law. Among the many topics suggested, one in particular has attracted a lot of media attention. “The Administration recommends that Congress clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances.”

The Obama Administration clearly feels strongly that there is a gap in enforcement with regard to streaming content, and it hopes that Congress will fill this gap, as courts have clearly not been so willing. Though the basic intent of the White House suggestion is clear, the implementation is far less transparent. Phrases like “similar new technology” and “appropriate circumstances” give the sense that, even if Congress were to amend the Copyright Act to specifically address streaming technology, the White House has not provided any clear guidance on the best way to do so.

For now, this change is just a wish of the Administration. If it were eventually implemented in some form, look for a substantial reduction in the availability of free authorized streaming content, as the copyright holders would not need to compete with the unauthorized sources.